Mi'kmaw Livelihood Fisheries Class Action
The Hubert Francis Saga
In 2015, Hubert Francis, a Mi’kmaw resident in the Province of
New Brunswick, attempted to fish for shrimp as the result of a letter
of authorization issued by the Grand Council of the Mi’kmaw.
On the 8th day of May, his boat was boarded and his catch
seized by DFO at Arichat, Nova Scotia. The non-Mi’kmaw crew
were charged under the Fisheries Act and the catch was seized.
On October 20, 2015, he had his catch of shrimp seized and
this was repeated on October 29th. Hubert and his crew were
charged in Fox River, Quebec (located in the Bay of Chaleur).
At all times, Hubert was fishing for shrimp in season in areas where
this fishing is permitted through licenses granted to non-Mi’kmaw.
As a result, and after consulting legal counsel, Hubert chose to commence a civil proceeding against the Federal Crown seeking a declaration from the Court that he, as an individual Mi’kmaw, had a Treaty right and an aboriginal right to fish and trade (sell) the harvest of his fishing without unjustified interference from the Crown acting through DFO, or otherwise.
Hubert chose to pursue the civil route for the following reasons:
The Treaty right was affirmed in the Marshall decision. Unfortunately, the Marshall case was only associated with the guilt or innocence of Donald Marshall and in such circumstances, the Supreme Court of Canada was limited in what it could or could not do. On the other hand, a civil case allows the Court to issue an order or declaration against the Crown stating that the Treaty right cannot be the subject of harassment or charges by the Crown, unless and until the Crown can justify such actions or that it has otherwise accommodated the right.
There are certain advantages in the civil context. First of all, the Crown is required to establish that any reduction or diminishment of the right through their actions is justified under the
so-called Badger test. The Courts have created this Badger test in order to outline the priorities where recognized indigenous rights are considered in relation to non-indigenous rights. The priorities are clear – first and foremost, conservation is the overriding principle. After conservation, it is the rights of the indigenous peoples which are considered. This involves, in case of the present matter, appropriate allocation of quota for the individual species. This, to date, has not been done with respect to the rights of the individual Mi’kmaw as recognized in Marshall.
Secondly, in the Marshall case, summary conviction proceedings, all the Court could decide is that the regulations under which Donald Marshall was charged (see Question 9 in the section: Frequently Asked Questions of this website), were inoperative and of no effect on Donald Marshall, an individual Mi’kmaw exercising his Treaty right, unless justified by the Crown. The Supreme Court of Canada in Marshall even suggested how the right might be justified - catch limits could be established in order to “produce a moderate livelihood for individual Mi’kmaw families at present-day standards”.
In the Marshall case, the Crown did not offer any justification as they were not required to in such proceedings. The Supreme Court of Canada assumed that the Crown took the position that the right did not exist. In any event, it is clear that Donald Marshall or indeed, any Mi’kmaw attempting to exercise the Treaty right after the Marshall decision, could be charged again and again under the regulations, whether or not they were ultimately found guilty or not guilty. This apparently is the position the Crown has taken to prevent the exercise of the right. This has been an effective tool used by Crown. The only way to prevent the Crown from continuing to do so, is to commence a civil action, as did Hubert Francis.
The right is an individual right which belongs to all Mi’kmaw who can establish successor rights to Mi’kmaw at the time of the Treaties. This makes this situation ideal for the civil class action suit as the Bands do not have the right vested in them.
Procedurally, the civil action allows for a much more efficient forum for the determination of the issues involved which include the Treaty rights and the underlying aboriginal right to fish and trade which was not given up under the Treaties here as they were in most other areas of the Country.
Since the Marshall case, the law has developed substantially. In particular since 2005, civil suits have been commenced in some of the “fishing and trade” cases, so such procedures are not without precedent and success.
So what happened in the Hubert Francis matter? Well he started his civil suit. He immediately sought financial assistance, seeking an order for advance costs. (This was after his efforts to raise funds – he sent out over 300 letters seeking financial assistance and only received $10,000 – failed to yield anywhere near what would be required.) This issue for advance costs was heard by three levels of the Federal Court and in each case, it was found that Hubert did not satisfy the test for advance costs. After the decision from the Federal Court of Appeal, which stated that the summary conviction proceedings were a sufficient alternate forum for determination of the issues, leave to appeal to the Supreme Court of Canada was denied. Consequently, none of the substantive issues have been considered at all in this matter.
Prior to the ruling by the Federal Court of Appeal, Hubert Francis was tried, convicted and fined for the offenses for which he was charged by a Quebec Court without being represented by legal counsel. The Crown kept the catch that they seized, valued at approximately $18,000.
No case should proceed in the civil courts unless appropriately funded upfront.
The civil case is the only way to advance and further develop the Treaty right and the aboriginal right.
Defense of the summary conviction charges does not achieve any overall goals of the Mi’kmaw people and the Mi’kmaw fishers. It ends up just being an endless repeat of the Crown stopping the exercise of the rights. The Crown has done this repeatedly both before and after the Marshall decision which has been a very effective strategy on their part to preserve the present quota system for the benefit of the non-Mi’kmaw license holders.
Any civil action should include an interim remedy of a stay of all proceedings, charges and seizures against any Mi’kmaw attempting to exercise his or her right until all issues have been settled under the overall civil action.
The civil case should be framed in the form of a class action by and on behalf of all Status Indians who are Mi’kmaw and who can establish sufficient successor rights under the Treaties or otherwise as may be required under the aboriginal right. (See What is a Class Action? section of this website). Appropriate Mi’kmaw persons would be appointed as “Representative” Plaintiffs on behalf of the class. Hubert Francis would be one of the Representative Plaintiffs.
The Crown, through its procedures of charging and harassment of individual Mi’kmaw has divided the Mi’kmaw community and its Bands by “negotiating” with Bands and groups of Bands who do not have the ability to negotiate the rights appropriately. This procedure has been undertaken by splitting Eastern Canada into Provincial and localized boundaries. Such a view of the Treaty right is not consistent with the terms of the Treaties.
The Crown argued in the Hubert Francis case, that the Bands have the jurisdiction over the right based upon other treaties in other areas of the country. These cases do not apply to the Peace and Friendship Treaties with respect to this issue. (See discussion under What is Not Being Addressed in the Present Conversations and The Marshall Decision and its Limitations sections of this website). This has led to division of the right to certain Provinces and the Bands in each area. These distinctions are arbitrary at best and leads to a general misunderstanding of the rights by the Mi’kmaw and the public at large. These rights are individual, were expressed in the Treaties as being individual and the Bands, the Provincial boundaries and the “zones” were created long after the Treaties and should therefore not have any impact on the rights.
Any individual Mi’kmaw can exercise the right anywhere in the
areas known as “Mi’kma’ki” (which would include all coastal areas
of eastern Canada) and otherwise subject only to conservation, and
conservation does not mean that the Crown can deduct from the
“quota” for any species, the amount of the quota allocated to those
other than the Mi’kmaw. And this should apply to all or most of the
species anywhere within the appropriate area.
The class action will also serve as a method to negotiate on behalf
of the class for resolution of the issues by and on behalf of all
Mi’kmaw belonging to the class in an effective and appropriate manner in a way which is not possible to achieve by the Bands or any other organization.
The recommendation which is clear from the foregoing is that sufficient funds be raised to proceed as soon as possible with the class action. The class action can only proceed if sufficiently funded and is the only way that this right can be advanced by and on behalf of the Mi’kmaw people.